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RaghukulCS
June 19, 2021

Daily Mains Newsletter For UPSC
| RaghukulCS

19 June 2021 - Saturday

Index

Mains Value Addition
Mains Analysis
Topic No	Topic Name	Source
1	In India, looking beyond the binary to a spectrum	The Hindu
2	Whose Party is it, anyway?	Indian Express

Mains Value Addition

Sportsmen to be conferred degrees based on their performance

Syllabus—GS 2: Education

Analysis: –

Deputy Chief Minister Manish Sisodia on Friday said that the upcoming Delhi Sports University is being set up with the vision to train and prepare sportsmen who could bring home 50 gold medals from the Olympics.
“The Delhi Sports University shall make India proud in sports, globally.
The university will have world-class facilities and provide exceptional training to budding sportspersons.
It shall nurture players to showcase India’s sporting potential in international tournaments and bring umpteen medals to the country,” Mr. Sisoida said.
The Minister said that the university will be a unique institution in the world of sports, and shall confer degrees up to the PhD level and sportsmen will be conferred degrees based on their sporting performance.

Mains Analysis

In India, looking beyond the binary to a spectrum

Why in News?

A delay in the provision of marriage rights to same-sex couples would fall foul of constitutional guarantees, judgments.

Syllabus—GS 1 & 2- Social Empowerment, Vulnerable section

When the cases surrounding the question of same-sex marriages came up before the High Court of Delhi, the Union Government was found to be dithering.
Though the Union Government argued that the matter was not important in the context of the second wave of COVID-19 cases,
It overlooked the basic notion that the plight of persons in same-sex and queer relationships looking after each other — without the legal protection of marital relationships — was exacerbated by the pandemic.
Union Government does not find urgency in a matter of extending civil rights to a class of persons who have approached a constitutional court.
Any further delay in doing so would fall foul of our constitutional guarantees, judgments rendered by various High Courts and evolving international jurisprudence.
The last two decades have witnessed tremendous progress in establishing civil rights for the LGBTQIA+ community.

International jurisprudence

In case of South Africa after a long struggle, the Civil Union Act, 2006 was enacted, enabling the voluntary union of two persons above 18 years of age, by way of marriage.
In 2007 in Australia, the reforms to civil rights of queer community were prompted by the Honourable Michael Kirby. Same-Sex Relationships Act 2008 came to be enacted to provide equal entitlements for same-sex couples in matters of, inter alia, social security, employment and taxation.
England and Wales, the Marriage (Same Sex Couples) Act 2013 enabled same-sex couples to marry in civil ceremonies or with religious rites.
In 2015, the Supreme Court of the United States decided that the fundamental right to marry is guaranteed to same-sex couple.
While doing so, the Supreme Court of the United States held the denial of marriage rights to same-sex couples to be a “grave and continuing harm, serving to disrespect and subordinate gays and lesbians”
Across the world, the recognition of the unequal laws discriminating against the LGBTQIA+ community has acted as a trigger to reform and modernise legal architecture to become more inclusive and equal.

Courts and civil rights

In India, marriages solemnised under personal laws such as the Hindu Marriage Act, 1955, Indian Christian Marriage Act, 1872, Muslim Personal Law (Shariat) Application Act, 1937 and so on.
At present, though same-sex and queer marriages are not clearly recognised in India.
In case of Arunkumarand Sreeja vs The Inspector General of Registration and Ors. the Madurai Bench of the High Court of Madras employed a beneficial and purposive interpretation holding that the term ‘bride’ under the Hindu Marriage Act, 1955 includes transwomen and intersex persons identifying as women.
The import of this judgment cannot be overstated as it expands the scope of a term used in the Hindu Marriage Act, 1955 in a progressive manner and sets the stage for re-imagining marriage rights of the LGBTQIA+ community.
The judgment of the Madras High Court builds on the tenets laid down by the Supreme Court of India in Shafin Jahan vs Asokan K.M. and Others AIR 2018 SC 1933 (Hadiya case), wherein the right to choose and marry a partner was considered to be a constitutionally guaranteed freedom.
Supreme Court held that the “intimacies of marriage lie within a core zone of privacy, which is inviolable” and that “society has no role to play in determining our choice of partners”.
Any legal or statutory bar to same-sex and queer marriages must necessarily be held to be unconstitutional and specifically violative of Articles 14, 15 and 21 of the Constitution of India.

Expanding scope of Marriage

The domain of marriages, including religious marriages, cannot be immune to reform and review. Self-respect marriages were legalised in Tamil Nadu through amendments to the Hindu Marriage Act, 1955.
Reform of the Hindu Marriage Act, 1955 to bring self-respect marriages under its very umbrella, is seen as a strong move towards breaking caste-based practices within the institution of marriage.

Conclusion

Understanding the needs of the LGBTQIA+ community today, the law must now expand the institution of marriage to include all gender and sexual identities.
At least 29 countries in the world have legalised same-sex marriage.

Question: –

Discuss why the India should think beyond the binary and reviews its existing legal architecture in order to legalise marriages irrespective of gender identity and sexual orientation.

Whose Party is it, anyway?

Why in News?

S Y Quraishi writes: In such cases, like the recent split within the LJP, the election commission must use guidelines and precedents to make a decision.

Syllabus—GS2: Elections related issues

Background: –

The sudden and dramatic developments in the Lok Janshakti Party (LJP) have caused quite a storm in the political circles.

Role of EC & Procedure involved in this regard:

In cases of party spilt, EC does not take suo motu cognizance but comes into the picture only when a party approaches with its claim.
Then the commission starts the quasi-judicial proceedings by giving notice to the other faction under Section 15 of the Election Symbols (Reservation & Allotment) order 1968, to give its version.
Both factions are asked to produce evidence in their support.
The EC examines the claims & counterclaims of the two factions to determine which one has the majority.
The EC looks at the strength of each group in the party’s organization & in the legislatures applying the test of majority.
Whenever EC failed to determine the strength of rival groups based on support within the party organization. It fell back on testing the majority among the elected MPs & MLAs.

Past Instances:

A spilt in a political party is not a new phenomenon, there have been several cases in the past.
The most important one is that of the Indian National Congress spilt in 1969 leading to the formation of Congress(O) & Congress(I).
Similar splits happen in AIADMK, Janata Dal & Samajwadi Party etc.
In all these cases the EC went through the above-mentioned process.
However many of these cases landed in the SC.
The most significant was that of the INC in 1969 where SC upheld the order of the ECI applying the test of majority.

Mechanism followed by EC before Symbols order came into effect:

Before 1968, the poll panel issued notification & executive orders under the Conduct of Election Rules 1961
In 1964, when spilt in CPI happened, the breakaway group approached the ECI urging it to recognize them as the CPI(Marxist) & EC recognized it.
But at that EC had no guidelines or precedents to fall back, it just used common sense to give its verdict through a notification.
Very soon the EC decided to frame guidelines & issued the Symbols Orders in 1968.
In its very first case, the EC applied the test of majority in Congress spilt & the SC upheld the principle & has been followed since then.
However, in 1997, the EC introduced a new rule under which one faction got the party symbol, while the other had to register itself as a separate party.

Way Forward:

It was a milestone judgment for the EC as the apex court upheld the Constitutional validity of the Election Symbols(Reservation & Allotment) order 1968, giving an executive order the status of subordinate legislation.
SC in the above case held that the symbol is not a property to be divided between two & in case of a spilt the EC has been authorized to determine which of the rival groups is the party entitled to the symbol.
And the EC in resolving the dispute does not decide as to which group represents the party but which group is that party.
The SC in many times upheld the test of majority in the Symbol order to be a valuable & relevant test to decide the dispute.

Question: –

Its always been the practice of the commission to give detailed & holistic orders that can withstand judicial scrutiny. In this context illustrate that EC’s quasi-judicial or administrative orders always pass the judicial test.